The Method Behind the Rule
Cutting a path through the middle of opposition
The Federal Motor Carrier Safety Administration ran head-on into a brick wall with its initial proposal for reforming the hours of service rules. Fierce opposition, mainly from the truck and bus industries, forced the agency to rewrite from practically a clean sheet of paper.
Second time around, the agency got smart. Instead of trying to bust through the wall, it simply built a door and walked through.
In a process that was both political and pragmatic, the agency used the ideas of the two interest groups with the most divergent views to create a path down the middle. It hired a third-party consultant to analyze the costs and benefits of a proposal by the safety advocacy group Parents Against Tired Truckers (PATT), the most restrictive of those offered in response to the proposed rule, and one by American Trucking Assns. (ATA), the least restrictive.
The analysis included a third, middle-of-the-road plan put together by FMCSA staff that incorporates information gleaned from the enormous commentary on the agency's initial proposal. This is the plan that became the final rule.
This process opened a hole in the wall by providing an objective, numbers-based analysis of what would be lost and gained under the PATT and ATA scenarios, compared to the government's middle road. Whatever may be said about the details of the analysis or the final rule, the safety agency can claim it weighed the alternatives on the same scale.
This of course will not guarantee harmony.
"I'm realistic enough to know that no matter who you are and what your particular viewpoint is, you can find something not to like" in the final rule, said former agency administrator Joseph Clapp, the principal architect of the rule.
"Depending on where people are coming from, they'll either complain (that) if you'd done something different then you could have saved 10 more lives, or you're killing us because you're cutting us back in some hours here or there. Well, you can't necessarily make those things meet in the middle."
The process the agency used to choose its path is detailed in the rule's Regulatory Impact Analysis. This document runs to 248 pages and is as dense as a black hole, but it sheds light on a number of important safety issues.
For instance, a key point of contention throughout the struggle over hour of service reform has been just how many fatal accidents are attributable to truck driver fatigue. Without a reliable number, there is no way to gauge the costs and benefits of even the current rule, much less a new one.
Depending on the source, the number has ranged from around 4% to close to 40% - not close enough for government work. The proposed rule settled on 15%, a number that included not just accidents in which fatigue was a direct cause but in which it was a relevant factor.
In the analysis of its final rule, the agency lowered its estimate by almost half, to 8.15%. One effect of this change is the inescapable conclusion that the new hours of service rules, important as they are, are not a safety panacea.
"As a matter of fact, you find out that you have a rather modest impact on fatigue-related accidents just by limiting hours of service," said Clapp. "When you get through reading the analysis you'll find out, gee, we're not saving thousands of lives."
When all the numbers are added and subtracted, the new rule will save between 24 and 75 lives a year, compared to theoretical full compliance with the current rule.
The agency's contractor, a Washington, D.C., firm named ICF Consulting, prepared a complex and detailed analysis of the PATT, ATA and staff proposals.
PATT's plan limited driving to 10 hours following 12 hours off duty, and to 50 hours per week. ATA's plan permitted drivers to be on duty and drive 14 hours a day, with an additional two hours two days a week, following 10 hours of rest. It also permitted 70 hours of duty in seven days, and 140 hours in two weeks under certain conditions.
The contractor analyzed these by constructing sample working and driving schedules and figuring out how each plan would affect those schedules. Using research done by the Walter Reed Army Institute of Research, it translated the on-duty time in each schedule into expected amounts of sleep, and then estimated the effects of the different sleep and driving schedules on driver alertness. Changes in alertness were then translated into expected changes in risk, based on a laboratory study of performance on a driving simulator. Next, using the 8.15% factor for fatal accidents attributable to fatigue, and other data, the contractor calibrated the simulated risks to get estimated changes in accident rates. Finally, these numbers were translated into dollars.
The net result was that the PATT plan saved the most lives but generated significant cost increases. The ATA plan saved some lives and cost somewhat more than the status quo. The staff plan wound up saving many more lives than the ATA plan, although fewer than PATT's, and it was significantly less expensive than PATT's.
This analysis included issues that were stumbling blocks for the industry in the proposed rule. For example, it addresses the trucking industry's concern that the safety agency did not properly account for companies having to hire and train new drivers in order to comply with the rule and provide the same level of service. It compares each plan on the basis of how many new drivers would be needed, and what the safety and cost impact would be. The PATT plan, for instance, would create the need for an additional 132,300 drivers compared to full compliance with the current rule, while the less restrictive ATA plan would require close to 47,000. The figure for the final rule is 84,300 drivers.
One of the difficulties in writing this rule was accounting for the substantial difference in fatigue-related risks between short-haul and long-haul driving. The analysis shows, for example, that long-haul operations will experience net benefits of $1.3 billion per year, compared to net costs of $164 million for short-haul operations - all because fatigue-related risks are much higher for long-haul drivers.
This disparity, in fact, led to one of the key exemptions in the final rule - the ability of short-haul drivers to extend the 14-hour day to 16 hours one day a week.
"We found that in the local operations, if you held them to a strict 14 hours, the number of drivers that had to be added would overwhelm the reduction in accidents and you would actually have a safety disbenefit," said Clapp. "So we said, let's account for a peak day in there. And when that analysis was done it came out with a favorable benefit."
Since the analysis is theoretical and necessarily based on data that may be open to question, it should not be taken as a literal accounting of the rule. That said, the bottom-line numbers are instructive.
In addition to lives saved, the analysis accounts for the value of accidents avoided under the various scenarios. By that accounting, the final rule will save $671 million a year. That compares to $852 million under the PATT plan and $176 million under ATA's plan.
Total costs, however, outweigh these gains. The net on the final rule comes out at a cost to the industry of $611 million per year, compared to theoretical full compliance with the current rule - which would cost $1.7 billion a year. That makes the new rule about $1.1 billion cheaper than full compliance with the current rule. The PATT plan would cost $4.8 billion, and ATA's plan would cost $574 million.
But at the end of all the accounting, the agency acknowledges that whatever the numbers may indicate, the effectiveness of the rule comes down to the driver.
"The FMCSA has no control over the manner in which a driver may spend his time off duty, although some of his spare time activities may tire him as much as any work would do," the agency said. "Drivers must manage their off-duty time intelligently if this final rule is to be effective.
Driver Rules continued...